Cyberprzestępczość - aspekty prawne i kryminologiczne
Cybercrime: legal and criminological aspects

Summary/Abstract: This paper examines the current State of criminal legislation and operations of the criminal justice system in Poland in the area of information and Communications technology (ICT) crime. It is indicated, that the origins of criminal cyber law regulations in Poland dates back to the late nineties, when all the computer-related infringements that compose “the minimum list” of the 1989 Council of Europę recommendation were criminalised under the 1997 Penal Codę. These were especially offences against the protection of information (chapter 33 of the Penal Code) such as: unauthorised access to the Computer system (Article 267 § 1), Computer eavesdropping (Article 267 § 2), data interference (Article 268 § 2), and Computer sabotage (Article 269 § 1 and 2). At the same time, specific provisions on Computer fraud (Article 287), unauthorised reproduction of a protected Computer program (Article 278 § 2) and handling ofillegaiły copied software (Article 293 § 1), were included into the category of offences against property. A legał definition of document has also been extended by the 1997 Penal Codę (Article 115 § 14) in order to enable prosecution of Computer forgery. In addition, such specific ICT-related offences like telecommunications fraud (Article 285), Computer espionage (Article 130 § 2) and causing a general hazard as a result of interference with automatic data processing (Article 165 § 1 point 4) were introduced to the Penal Code. Subsequent changes in ICT criminal legislation in Poland have resulted from the implementation of the European Community law (lst and 3rd pillar) and the Council of Europę Convention on Cybercrime. Before accession of Poland to the European Union a number of EC directives concerning e-commerce, intellectual property, conditional access to information services, digital signature, protection of personal data and privacy in electronic Communications were transposed to the national legał system and protected by the legislator with criminal sanctions (e.g. piracy of digital pay TV, spamming). In the course of implementing the Cyber-Crime-Convention an amendment to the Polish Penal Code entered info force on 1 May 2004. It introduced a few new specific cyber crimes (e.g. regarding hacker’s tools, system interference, and possession of child pornography), and amended some of the already existing legał provisions regarding Computer crime. The novelty of cyber crime and enormous rush with which the legislation passed the parliament have negatively affected its quality. Some of the newly adopted provisions are deficient anddo not fully conform the International and European normative standards. For in stance, intended data interference offence (Article 4 of the CoE convention) has inadvertently been defined in Article 268a of the Penal Codę as a provision that allows for prosecution of unauthorized hindering of access to data bases. Polish criminal cyber legislation is also somewhat incompatible with the third pillar instruments (e.g. the Council Framework Decision 2004/68/JHA of 22 December 2003 on combating the sexual exploitation of children and child pornography). Despite recently madę (July 2005) amendment to the Penal Code it does not provide for criminalisation of production and possession of the so-called virtual child pornography, even in relation to dissemination of such materials. A rising tendency in reported network incidents (graph no. 1) does not result in eąually high increase in the prosecution of on-line offenders (table no. 1) and their sentencing (table no. 2). Among many factors that may account for such developments, insufficient expertise of law enforcement and criminal justice practitioners, and the lack of appropriate procedures are pointed out as principal ones. A cursory glance at the police and courts statistics allows for a generał observation that two basie categories of cybercrime: those against traditional legał interests (e.g. property) and the modern one (e.g. confidentiality, integrity and availability of data/system) are differently perceived and reacted hereupon by their victims and the law enforcement and criminal justice authorities in Poland. It is rather not a coincidence that intemet-related frauds are morę eagerly prosecuted than Computer security offences. In view of expected growth of cybercrime and permanent evolution of its forms, more adequate legislation in this field and implementation of training programmes for police, prosecutors and judges dealing with ICT crime are recommended in conclusion.

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